Explain the key reasons why state sovereignty may be considered an outdated concept.

This is a 15-marker from Edexcel’s 2013 paper.  You need to talk about globalisation and the emergence of non-state actors (TNCs, NGOs, UN/ EU, ICC etc).  That’s after you’ve defined sovereignty, of course.  But in this post, I’d like to challenge the ‘outdated’ bit – is state sovereignty actually real, or is it a Western European construct?

Edexcel defines state sovereignty thus:

State sovereignty refers to the capacity of the state to act independently and autonomously on the world stage. It implies that states are legally equal and that the territorial integrity and political independence of a state is inviolable.  Arguably the significance of state sovereignty has been eroded by a number of developments which mean that state sovereignty is now an outdated concept. 

 This sort of thinking goes back to the Peace of Westphalia in 1648, which saw the end of the Thirty Years War.  It’s worth knowing a bit about the Thirty Years War, because it’s not too dissimilar to the kind of events tearing the Middle East apart at the moment, as this article in the Economist makes clear.

Britain, France, Italy, Germany – they’re all nation states.  The USA is a state of states.  In the 19th century, these European states began to amass empires in Asia, Africa and the Antipodes.  Because nation states were what we in Europe were all used to, it was only natural for the imperial colonists to divide their colonies into… states.  This meant drawing all sorts of boundary lines on maps, and carving up territory into territories.  If you look at a map of Africa, you’ll see lots of dead straight lines.  That’s because someone took a rule and ruled a line. These lines took little care of tribal boundaries, and Africa has suffered ever since.  Minority – and even some majority – tribes, such as the Tutsis in Rwanda (and, indeed, the Hutus in Rwanda before them) or the Igbo in Nigeria, have suffered massacres and wars because they are trapped in an artificial country.  The Rwandan genocide happened in part because of intra-tribal support across state boundaries, with the Hutus of Rwanda receiving help and support from those in Burundi.  In Africa, traditional tribal territories and cultures are arguably more important than ‘new’ state boundaries.

Similarly, in the Middle East, state sovereignty is a limited concept.  Sure, traditional, organic states do exist in the Middle East.  Let’s take Iran.  This is the mother of empires, whose first empire was built by Cyrus the Great in the 6th century BC.  Like Greece, Italy and Britain, it has a sense of its old imperial importance, and that’s why it hangs together so coherently, even though much of the population dislikes theocracy.  Saudi is also a state – ruthlessly put together by an acquisitive family, the ibn Sauds.  But the unravelling of Iraq showed how skin-deep the state is, and the civil war in Syria also – and the rise of Da’esh.  In the Middle East, it’s not so much tribal lines that act as tectonic plates, but religious divides:  the internecine struggles between Jews, Christians and Muslims, and the sectarian battles between Sunni and Shi’a within Islam.  These transcend borders.

Jim Muir,  an excellent BBC correspondent, has written an article on the Sykes-Picot line, and gives excellent maps showing the reasons for the mess of the Middle East.  It’s a must-read.

Jeremy Bowen’s exploration of the Middle East is here, and an excellent listen for further information on the states, or non-states, of the Middle East.


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The SC, politicians and the media

16th February 2017
The Financial Times reported how Lord Neuberger’s wife’s Tweets were scrutinised to pick up any pro-EU bias, and how Iain Duncan Smith (Brexiteer) called for ‘parliamentary hearings to examine the views of Supreme Court justice nominees — as is the practice in the US, where potential justices, who have extensive powers to overturn legislation, face Senate hearings.’
Neuberger’s reply to that was that it would be “very unfortunate if we had political scrutiny of the appointment of judges in this country…  First of all, I wonder what would be asked of the judge and what would the benefit would be...  If you are a decent judge your political views will be put on one side when you go into court.” He said he was “not really clear” what the political views of many of his colleagues on the Supreme Court were, calling this “one of the nice things about my job”.
Neuberger also said that the media’s coverage of the SC hearing was, in general, all right, but that Brexiteers had ‘made heroes’ of the three dissenting judges, and that the social media threats and attacks on Gina Miller were “very worrying”.
Neuberger and a colleague are about to retire; there will be three vacancies to the SC (another retired in the summer).  Brenda Hale is likely to be next president; she said that she feels, as the only woman, that she sticks out “like a bad tooth”.  Neuberger is actively trying to get a more socially/ ethnically diverse range of applicants.  They will be appointed by an independent commission (separate from the JAC, but, of course, the JAC has already appointed those applicants to the judiciary in the first place.
The judiciary are aware of their possible background bias; they are also intensely aware and protective of judicial independence – the main reason why politicians gnash their teeth, as they know they’ll have no sway.  Judges uphold the rule of law, and that’s that.

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Brexit. An only partially biased guide.

The Referendum
To make things scrupulously fair (lorks, what an idea), the Electoral Commission recommended the question: 

‘Should the United Kingdom remain a member of the European Union 
or leave the European Union?’

A few referendum facts:
•    23rd June 2016; campaign period was launched in February 2016
•    72% turnout
•    51.9% Leave (17,410,742); 48.1% Remain (16,141,241) – a difference of 1,269,501 people (there are currently over 9,000,000 pensioners in Britain)
•    Scotland, Northern Ireland and Gibraltar voted to remain (62%, 55.8%; 95.9%:  about 75,7174 people – as far as I can work out)
•    73% young people voted Remain; 60% OAPs voted Leave; 64% turnout, under 35s; 90% turnout over 65s
•    Campaign funds were limited to £7,000,000 each (yes, really), but it’s thought that a) the sum of both sides’ campaigns came to about £28,000,000 (ouch) and Leave got £4,000,000 more than Remain (largely from Tory donors)  (double ouch)
•    The referendum – its post, copies, officials etc. – cost about £142.4,000,000 (mega ouch).

There is an excellent BBC web page here with lots of lovely pictures (I love you, Auntie, for your maps and infographics; I will always pay my TV licence, even though I don’t have a TV).

The legend that the Brexit Referendum was born from a desire to keep the Tory right sweet has a lot of truth in it (and notice how vocal Bill Cash has become again.  He has got a second wind the force of a gale).  David ‘Flim-Flam’ Cameron tried to get a bill passed to ensure a referendum, but it was thrown out; the referendum had, however, crept into the Tory manifesto.  Flim-Flam tried to renegotiate the UK’s EU deal, but got nowhere, and the referendum was announced.  Parliament passed the European Union Referendum Act in 2015, giving authority for an advisory referendum.

1)    the referendum was always only advisory.  At no point does Parliament legally have to accept it, despite ‘the British people’ having ‘spoken’.
2)    The wording of the referendum was amazingly neutral – compare the Scottish independence referendum:  ‘Should Scotland be an independent country?’  That had a massive turnout – 84.6%:  2,001,926 (55.3%) No and 1,617,989 (44.7%) Yes.  Despite the question.  The importance of wording questions is brilliantly summed up here.

Two interesting maps to compare.

First, the general election results of 2015
Blue = Conservative;  Red = Labour;  Orange = LibDem;  Green = Green in England or Plaid Cymru in Wales;  Northern Ireland – dunno.

Secondly, the EU Referendum
Blue = Leave;  Yellow = Remain;  Grey = Tie

The areas which were the highest Brexit voters were in the North, Midlands and East.  The surprise to most political commentators was the Labour heartlands in the North, which all voted Leave.  But, given the socio-economic situation of the North, it’s not surprising that they voted as they did.  The south-east of Lincolnshire was also heavily Brexit:  towns and villages there have changed immeasurably with the influx of Eastern Europeans to do badly paid, back-breaking agricultural and fishing work that the British won’t touch any more because it’s easier getting benefits.

The outcomes of the Referendum.
The economic consequences are hard to predict, but most organisations predicted doom and gloom before the Referendum, and a lot are predicting further doom and gloom now.  Sterling has fallen and companies are looking at least to have European bases, if not to move to the Continent entirely.  Employers in certain sectors fear a skills and labour shortage, although this may only be short/ medium-term.  The economic outcome will depend on what sort of Brexit we get.

Politics and the Law
The Labour Party is riven:  despite a three-line whip on the Brexit vote in the Commons, four Labour front-benchers voted against, and, consequently, quitted the front bench.  The Tory right is driving for ‘hard’ Brexit, to be outside the Common Market.

The government declared that it would trigger Article 50 (the get-out clause) using a prerogative power.  Gina Miller et al. brought a court case against the Secretary of State for Exiting the EU (why not ‘leaving?  What is the matter with our language, these days?  Does nobody think English can be beautiful any more?  Must it be in the hands of the barely literate and, even worse, the Americans?), arguing that this did not fall within a prerogative power, but had to be accomplished by Act of Parliament.  The High Court, and subsequently the Supreme Court, agreed.

The case is a really interesting one, and rather contentious.  It hinges on two things:  1) whether the government can use prerogative powers to diminish people’s rights and freedoms, and 2) whether leaving the EU is affected by, and affects, statute law, specifically the European Communities Act 1972.  (I love law.)

The judgment was thus:
1)    The ECA ceded law-making powers to the EU, such that EU law = UK law; only Parliament has the power to cede law-making powers, or to take back those powers.
2)    Rights will be diminished, therefore the government needs permission
3)    Although ministers are allowed under the ECA to exercise treaty powers (making and breaking treaties), withdrawal from the EU will change a source of UK law, and therefore the ultimate source of UK law (Parliament) needs to give permission.
4)    The ECA does not give explicit consent for ministers to withdraw from the EU
5)    Subsequent laws seem to have worked on the assumption that Parliament’s consent is needed to withdraw

The three dissenting judges argued that the ECA is a separate thing from Article 50, and therefore does not affect the government’s prerogative powers.
I both agree and disagree with the SC justices.  One law academic has written that whilst the judges upheld Miller et al.’s claim that triggering Article 50 would lead to a loss of rights and therefore the royal prerogative could not be used, there are cases where it has.  One fairly recent one was the disgraceful treatment of the Chagos islanders by the UK government in order to suck up to the Americans.  This was arguably foreign affairs, and so different from the domestic affairs that the ECA governs – and Sir Edward Coke in 1610 wrote that the monarch ‘cannot change any part of the common law or statute law, or the customs of the realm’.  Coke, like Dicey (also quoted in the case), is a constitutional legal text.  In addition, the 1689 Bill of Rights says that the monarch cannot suspend Acts of Parliament.  But The ECA is not necessarily suspended by a prerogative triggering Article 50.  If Parliament had the intention that the ECA couldn’t be undone by prerogative, then it cannot be – and that’s one of their lordships’ points:  there’s no explicit permission.  But equally, there’s no explicit forbiddance.  I think we’re on thin ice here. 

But I agree with the SC justices because had they found in favour of the government, this could have set an unwelcome precedent – of strengthening royal prerogative.  One of the judgments quoted was Lord Browne-Wilkinson’s, in R. v. …Fire Brigades Union (1995)

‘The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.’

This case followed that principle.  I do not think that their lordships were right about the legal nitty-gritty of the case itself, but I do think that they were right to defend the underlying principles behind it.  I’m afraid that if this doesn’t make sense, you’ll have to read some sound, but long, law blogs, the summary of the SC judgment, and the ECA.
•    David Feldman:  Brexit, the royal prerogative and parliamentary sovereignty
•    Mark Elliot:  Brexit:  why Article 50 does not need Parliament
•    The ECA

Gina Miller’s excellent New Statesman article sums up her principles.  She puts forth the further point that populism is a potential problem – implying that the referendum is a product of populism.  Clem Atlee indeed said, ‘I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and fascism.’  This is why the government’s repeated bleating that ‘the British people have spoken’ is – I think – a) disingenuous, and b) dangerous.

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Poland, Russia and the Clash of Civilisations

I’ve just listened to another excellent Tim Whewell on Russia and the Pull of Putin.

And that made me re-listen to Lucy Ash’s report on Pussy Riot from a few years ago.

And now I’m listening to Maria Margaronis on Poland’s Black Protests.

And these have got me thinking about the Clash of Civilisations thesis.  The conservatism in Poland and the grip of the Church on society (and politics) is very, very similar to that in Russia – but, of course, Russia is Orthodox and Poland Catholic.  A Ukrainian former student 6th said you couldn’t differentiate between Catholic and Orthodox bits of Ukraine.

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That ECHR not in full…

The Human Rights Act, 1998, is:
An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.

The European Convention on Human Rights was drawn up by lawyers such as David Maxwell Fyfe after the Second World War. The HRA is the ECHR (without a couple of Articles which are already covered by British law/ convention), and very briefly is:

PART I The Convention Rights and Freedoms
Article 2 Right to life
Article 3 Prohibition of torture
Article 4 Prohibition of slavery and forced labour
Article 5 Right to liberty and security
Article 6 Right to a fair trial
Article 7 No punishment without law
Article 8 Right to respect for private and family life
Article 9 Freedom of thought, conscience and religion
Article 10 Freedom of expression
Article 11 Freedom of assembly and association
Article 12 Right to marry
Article 14 Prohibition of discrimination
Article 16 Restrictions on political activity of aliens
Article 17 Prohibition of abuse of rights
Part II The First Protocol
Article 1 Protection of property
Article 2 Right to education
Article 3 Right to free elections
Part III The 13th Protocol
Abolition of the death penalty
This is all pretty reasonable, and, one would think, uncontroversial.  But not according to Theresa May.
See the Grauniad’s wonderful video spoof on this.

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Environment stuff

The environment is the biggest political issue the world faces.  There are several fundamental problems which make co-operation and action difficult.

Vested interests:  this is economic.  Here are some examples.
GMOs.  Democracy at work.

Various people have various ideas on how to solve things.
Building using hi-tech stuff
Carbon capture

But until we change our entire economic system, I don’t believe it possible to deal with climate change and related environmental matters.  We probably need to halve the human population, too.

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Environment podcasts

Why is climate change so difficult to deal with, when the ozone was a global success?

The science of climate change:
Inconvenient facts?
IPCC report discussion

How did we save the ozone layer?
The Ozone 30 years on

What we need to do:
A Resilient World?
Interview with David Attenborough 

Deep/ shallow ecology
Beyond green
Satish Kumar

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